7ASR3d3

Series: 7ASR3d | Year: () | 7ASR3d3
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TCW SPECIAL CREDITS, a California

General Partnership, as Agent and Nominee, Plaintiff/Appellant,

 

v.

 

F/V KASSANDRA

Z, OFFICIAL NO. 653391, HER ENGINES, NETS, FURNITURE, etc., In Rem KASSANDRA

FISHING COMPANY, INC.; a Commonwealth of the Northern Mariana Islands

corporation, In Personam, Defendants.

______________________________

 

MICHAEL DATIN,

et al., Plaintiffs-In-Intervention/Appellees,

 

v.

 

M/V KASSANDRA Z, OFFICIAL NO. 654491, HER ENGINES, NETS, FURNITURE, etc.,

In Rem, et al., Defendants.

______________________________

 

AND RELATED

CLAIMS

 

High Court of American Samoa

Appellate Division

 

AP No. 05-00,

AP No. 09-00

 

March 4, 2003

 

 

[1] An appellate court reviews questions of law de novo but may not set aside the findings of fact of the Trial Division

unless they are clearly erroneous. 

 

[2] A trial court finding of fact is clearly erroneous

when “the entire

record produces the definite and firm conviction that the court below committed

a mistake, according particular weight to the trial judge’s assessment of

conflicting and ambiguous facts.” 

 

[3] The purpose of the portion of statutory wages

awarded under 46 U.S.C. § 11107 that is more than what the seaman would have

received had his fishing agreement been valid is designed to punish ship owners

who illegally engage seamen.

 

[4] Historically, the purpose of the requirement of a

written shipping articles agreement under 46 U.S.C. § 11107 was to protect seamen

from exploitation and mistreatment, while its modern purpose is to avoid

disputes about wages and other terms and conditions of employment.

 

[5] Punitive damages cannot be recovered against a

vessel. 

 

[6] Statutory wages awarded under 46 U.S.C. § 11107

are not punitive damages since the statute merely substitutes for an oral

fishing agreement and calls for the rate of wages that are to be paid. 

 

[7] Statutory wages awarded under 46 U.S.C. § 11107

give rise to preferred maritime liens that are recoverable in rem and are granted the highest priority

after in custodia legis costs. 

 

[8] In contrast to 46 U.S.C. § 10313(g), 46 U.S.C. §

11107 has no language limiting recovery of penalty wages only as against the

vessel’s master or owner and therefore permits recovery in rem against the sale proceeds of a fishing vessel.

 

[9] Party was not an “innocent lienholder” and should

have known the applicable law even if industry practice was contrary to the

law.

 

[10] Courts

cannot change what is clear on the face of the statute.

 

[11] Operation

of 46 U.S.C. § 11107 is automatic, rendering oral agreements between a crew and

the employer void and awarding statutory wages, regardless of whether the

employer made partial payment of wages on the agreements’ terms.

 

[12] Laches is

an equitable doctrine that bars an action where there has been an unreasonable

delay in bringing the suit, and the other party has been prejudiced as a result

of the delay. 

 

[13] A wronged seaman is entitled to

recover the higher of either the wages he orally agreed to, or the higher rate

of wages that could be earned by a seaman at the port of hire who has the same

rating (rank, job classification, duties and ability) as the complainant.

 

[14] A court

examines the totality of the circumstances in determining whether a seaman has

demonstrated that he or she is comparable to another seaman for purposes of 46

U.S.C. § 11107.

 

[15] To prevail

in a civil action, a party must make the required showing by a preponderance of

the evidence. 

 

[16] The trial

court’s finding that crew members, other than ordinary deckhands, were

“interchangeable” with crew members of other ships and fleets without reference

to their rank, job classification, duties and abilities was clearly erroneous

in light of the crew’s burden of proving its case by a preponderance of the

evidence and the lack of facts that would support such a finding.

 

[17] The

doctrine of quantum meruit awards a

plaintiff an amount equal to the value of the benefit he has provided to

protect against the unjust enrichment of the beneficiary.

 

[18] Under quantum

meruit, crew entitled to the value of the benefit they conferred upon their

vessel and its owners where

crew was instrumental in keeping the vessel in working order even though the

imminent voyage never materialized because the vessel maintained a higher price

upon judicial sale than would have been realized if the vessel were run-down.

 

[19]

Calculation of crew’s recovery in quantum meruit for maintaining a

vessel before a voyage that never occurs is the actual value of the benefit

conferred, not the hypothetical benefit that might have accrued had the ship

taken the voyage.

 

[20] American Samoa law allows in rem recovery

against a vessel of a quantum meruit award.

 

Before RICHMOND, Associate Justice; WALLACE,* Acting Associate Justice; MOLLWAY,** Acting Associate Justice; MAMEA,

Associate Judge; TUPUIVAO, Associate Judge.

 

Counsel:          Craig Miller and Barry I. Rose for Plaintiff/Appellant TCW Special Credits

                        William H. Reardon and

William L. Banning for

                        Michael Datin, et al.,

Plaintiffs-In-Intervention/Appellees

 

OPINION AND ORDER

 

TCW Special Credits (“TCW”) appeals from a judgment of the

Trial Division holding that following its foreclosure of a preferred ship

mortgage on the F/V Kassandra Z (Kassandra Z), TCW must pay

Michael Datin, et al., Kassandra Z’s crew, statutory

wages under 46 U.S.C. § 11107 and quantum meruit damages because the chip’s former owner failed to do so

prior to the arrest of the ship in 1996. 

The crew also appealed and cross-appealed.  The Trial Division had jurisdiction over this

action pursuant to A.S.C.A. § 3.0208(a). 

We have jurisdiction over these timely appeals pursuant to A.S.C.A. §

3.0208(c).  We affirm in part, reverse in

part, and remand to the Trial Division for further proceedings.

 

I.

 

The Kassandra Z was part of a family of eleven tuna seiners owned

by the Zuanich family who operated out of various ports, including American

Samoa, Guam, New Zealand, and San Diego, California.  The Zuanich family began to experience

financial difficulty in 1995.  Seeking

relief, the Kassandra Z Fishing Co., Inc., one of the companies owned by the

Zuanich family, granted a preferred ship mortgage to TCW secured

against its vessel, the Kassandra Z.  On

July 2, 1996, TCW filed a foreclosure action against the Kassandra Z in

the Trial Division and had the vessel arrested by the High Court Marshal.  The crew members on board were removed from

the ship, and most were repatriated to their homeland in Croatia.

 

Thereafter, the crew members intervened in the foreclosure action,

alleging that they were owed unpaid wages for two full voyages, as well as

“short checks”—adjustments in pay based on the cannery’s final calculation of

the haul to be canned—left unpaid from other trips. Because the crew members

were never given written fishing agreements as required by 46 U.S.C. § 10601

they asserted they were entitled to statutory wages under 46 U.S.C. §

11107.  Section 11107 provides that “[a]n

engagement of a seaman contrary to a law of the United States is void.  A seaman so engaged . . . is entitled to

recover the highest rate of wages at the port from which the seaman was engaged

or the amount agreed to be given the seaman at the time of engagement, whichever

is higher.”  46 U.S.C. § 11107.

 

Following a three-day trial the Trial Division awarded judgment for the

crew in the amount of $713,623.14.  The

Court determined the amount of the award based upon unpaid wages under Section

11107 for two trips, wages for the time the crew spent waiting in port for what

was to be the final voyage of the ship, prejudgment interest, and other

costs.  Both sides moved for

reconsideration of portions of the Trial Division’s decision, and the Court

issued a second order, holding that Section 11107 wages for the short checks

were available, and adjusting the crew’s award to $1,396,155.55.

 

On appeal, TCW argues that the wages awarded to the crew under 46 U.S.C.

§ 11107 are really “penalties” that cannot be recovered in rem with priority over TCW’s preferred ship mortgage.  It also argues that the Trial Division erred

in awarding wages under Section 11107 for the “short checks” that were never

paid.  TCW alleges that the Trial

Division erred in allowing the crew to prove the rate of wages to which they

were entitled under Section 11101 by a “prima facie” showing only.  Finally, it asserts that the Trial Division

erred in awarding any wages for the crew’s in-port waiting time for the final

journey that never happened.  The crew

argues on cross-appeal that the court erred in requiring the crew to prove any

comparability under Section 11107.  They

assert that instead they should receive the highest wage paid to “any seaman”

on board the ship.  In the alternative,

they suggest that the Trial Division should have used a rating system as

suggested by the Court of Appeals for the Ninth Circuit in TCW Special Credits v. Chloe Z Fishing Co.,

129 F.3d 1330 (9th Cir. 1997).

 

II.

 

One preliminary matter deserves

attention.  Long after briefing had

closed and just weeks before oral

argument, the crew filed what it styled a “supplemental brief,” which

urged that under the unpublished decision in TCW Special Credits v. Barandiaran, 238 F.3d 431 (Table), 2000 WL

1277939 (9th Cir. Sept. 8, 2000), the Trial Division additionally erred in

ruling that the Kassandra Z’s

Master and Fish Captain were not entitled to wages under Section 11107.  The Court of Appeals for the Ninth Circuit

does not ordinarily allow citation to unpublished decisions.  Ninth Circuit Rule 36-3(b).  The crew does not provide a reason why we

should consider a decision the authoring court does not deem to be of

precedential authority.

 

However, we need not decide this issue.  We conclude the crew’s claim in its

“supplemental brief” is jurisdictionally barred.  While parties may direct our attention to

legal authority established subsequent to briefing, they are not free to raise

new arguments not addressed in their briefs. 

The crew did not raise this issue in either their appellee’s brief or

their cross-appeal brief.  Therefore, the

“supplemental brief” does not meet the ten-day time limitation for filing a

notice to appeal, A.C.R. 4(a).  Because

the deadline for filing a notice of appeal is jurisdictional, A.S.C.A. §

43.0802(b), Taulaga v. Patea, 17

A.S.R.2d 34, 35 (App. Div. 1990), we will not address this issue.

 

III.

 

[1-2] We review questions of law de novo.  Anderson

v Vaivao, 21 A.S.R.2d 95, 98 (App. Div. 1992).  We may not set aside the findings of fact of

the Trial Division unless they are clearly erroneous.  A.S.C.A. § 43.0801(b); Anderson, 21 A.S.R.2d at 98. 

A finding is clearly erroneous when “the entire record produces the

definite and firm conviction that the court below committed a mistake,”

according particular weight to the trial judge’s assessment of conflicting and

ambiguous facts.”  E.W. Truck & Equip. Co. v. Coulter, 20 A.S.R.2d 88, 92 (App. Div.

1992).

 

With this in mind, we turn first to whether the Trial

Division erred in concluding that the statutory wages it awarded the crew for

unpaid trips under 46 U.S.C. § 11107 were recoverable in rem against the

Kassandra Z and with a

preferred lien status over TCW’s ship mortgage.

 

[3-4] TCW urges us to call these statutory

wages “penalties” or “punitive damages,” and asserts that we should hold that

they are not recoverable in rem with

priority over TCW’s preferred ship mortgage. 

TCW correctly points out that the purpose of the portion of statutory

wages awarded under Section 11107 that is more than what the seaman would have

received had his fishing agreement been valid is designed to punish ship owners

who illegally engage seamen.  Seattle-First Nat’l Bank v. St. Elias Ocean

Prods., Inc., 98 F.3d 1195, 1198 (9th Cir. 1996).  Historically, the purpose of the requirement

of a written shipping articles agreement was to protect seamen from

exploitation and mistreatment, Sylvis v. Rouge

Steel Co., 873 F.2d 122, 125 (6th Cir. 1989), while its modern purpose is

to avoid disputes about wages and other terms and conditions of employment

precisely like the one in this lawsuit.  Id. 

As such, the “punishment” for violation of this requirement is that the

ship is answerable to the crew for a rate that may be higher than what they

invalidly agreed to in the first place.

 

[5-6] We understand that punitive damages cannot be recovered against a

vessel.  Hunley v. Ace Mar. Corp., 927 F.2d 493, 496 (9th Cir. 1991).  Nonetheless, statutory wages awarded under

Section 11107 are not punitive damages. 

The statute expressly states that the seaman illegally engaged “is

entitled to recover the highest rate

of wages at the port from which the seaman was engaged or the amount

agreed . . . whichever is higher.”  46

U.S.C. § 11107 (emphasis added).  The

statute therefore substitutes for the oral agreement, and calls for the rate of

wages that are to be paid.  Thus, the

amount awarded under Section 11107 is not a “punitive damages” award—it rather

represents wages owed at a rate statutorily set.  Courts have long held this to be the

case.  See West Winds, Inc. v. M.V.

Reso1ute, 720 F.2d 1097, 1103 n.4 (9th Cir. 1993) (citing to predecessor

statutes discussed in Collie v. Fergusson,

281 U.S. 52, 54 (1930) and Gerber v.

Spencer, 278 F. 886, 889 (9th Cir. 1922)); Buckley v. Oceanic S.S. Co., 5 F.2d 545, 546 (9th Cir. 1925)

(predecessor statute).

 

[7]

Statutory wages awarded under 46 U.S.C. § 11107 give rise to preferred maritime

liens that are recoverable in rem.  46 U.S.C. § 31301(5)(D); Seattle-First Nat’l Bank v. Conaway, 95

F.3d 1195, 1198-99 (9th Cir. 1995).  This

is so because, as the Supreme Court recognized early in American history, a

ship is liable in rem for the unpaid wages of a Seaman. 

The John G. Stevens, 170 U.S.

113, 119 (1898).  Moreover, seamen’s wage

liens have always been granted the highest priority after in custodia legis costs.  Key

Bank of Wash. v. S. Comfort, 106 F.3d 1441, 1443-44 (9th Cir. 1997); Kesselring v. F/T Arctic Hero, 30 F.3d 1123,

1125-26 (9th Cir. 1994).  The Ship

Mortgage Act also makes clear that liens for wages of the crew have priority

over preferred ship mortgages.  46 U.S.C.

§ 31326(b)(1).

 

[8]

TCW urges us to adopt the holding of the Fifth Circuit in Governor & Co. of Bank of Scotland v. Sabay, 211 F.3d 261, 275 (5th Cir. 2000), and apply it here.  Sabay

held that penalty wages awarded under 46 U.S.C. § 10313(g) are not recoverable in rem against the sale proceeds

of a fishing vessel.  Id. at 275.  However, the plain language of Section

10313(g), with which Sabay dealt,

makes the holding in that case inapplicable to the case before us.  Section 10313(g) states that when the master

does not pay each seaman the balance of wages due “without sufficient cause,

the master or owner shall pay to

the seaman 2 days’ wages for each day payment is delayed.”  45 U.S.C. § 10313(g) (emphasis added).  The Fifth Circuit interpreted this statute’s

plain language to “preclude . . . enforcement

of the penalty wages liens at issue against the sale proceeds.  The statute imposes liability for such wages

only on the vessel master or owner.  Sabay,

211 F.3d at 275.  Because the sale

proceeds were insufficient to satisfy all of the liens against the vessel, the

owner no longer had an interest in those proceeds; therefore the lien could not

be enforced against proceeds in which the owner no longer had an interest.  Id. at 275-76.  Sabay

is inapplicable to this case, where Section 11107 has no language limiting

recovery only as against the vessel’s master or owner.

 

[9] TCW’s final

argument is that it is an “innocent lienholder” and shouldn’t have to pay the

crew’s wages under Section 11107.  But

when TCW secured its mortgage on the Kassandra

Z, the statutes at issue in this case, 46 U.S.C. § 10601 and 45 U.S.C. §

11107, were already law.  Commercial

Wishing Industry Vessel Safety Act of 1988, Pub. L. 100-424, § 6(a), 102 Stat.

1591 (codified as 46 U.S.C. § 10601); Act of Aug. 25, 1983, Pub. L. 99-89, 97

Stat. 580 (codified as 46 U.S.C. § 11107). 

The relevant cases, West Winds,

720 F.2d at 1103 n.4 (holding that Section 11107 wages are wages and not

punitive damages) and The John G. Stevens.

170 U.S. at 119 (holding that “as long as a plank of the ship remains, the

sailor is entitled, against all other persons, to the proceeds as a security

for his wages”) had long been decided. 

When TCW secured

the mortgage on the Kassandra Z, it should have been aware of what the

law was, even if, as it asserts, it was standard practice in the fishing

industry to operate without written fishing agreements.  Indeed, compared to fishermen, mortgagees

like TCW are in a better position to demand that vessel owners make written

agreements with their seamen through covenants in the mortgage contract.

 

We therefore hold that the Trial Division did not err in awarding the

statutory wages to the crew under Section 11107’s preferred status over TCW’s

ship mortgage.

 

IV.

 

We next deal with TCW’s challenge to the Trial Division’s decision to

award approximately $600,000 under 46 U.S.C. § 11107 for unpaid wages owed on

certain “short checks” unpaid at the time of the vessel’s arrest.  It is standard practice in the tuna fishing

industry to pay crew wages in two installments: the first is a substantial

payment of 90-95% of the wages owed based on the estimated weight of the fish

off-loaded; the second is for the remaining 5-10%, known as a “short check,”

which is calculated after the cannery determines the quantity of

“rejects.”  Short checks typically are

issued within a few weeks after the catch is off-loaded; however, the owners of

the Kassandra Z never paid crew members their short checks for nine of

the twenty-six fishing trips they made. 

TCW argues that the Trial Division erred in awarding statutory wages for

these missing short checks.  TCW’s

argument is based upon three contentions: (1) the seamen were “fully paid” for

the nine trips in question; (2) permitting the recovery of statutory wages

would be unfair and would cause dire consequences to the fishing industry; and

(3) the crew’s claims are barred by the equitable doctrine of laches.

 

As for TCW’s

first contention, the Trial Division found that the crew members were not fully

paid for these trips.  We hold the

finding was not clearly erroneous.  That

they received the first payment of 90-95% does not mean they were “fully paid.”

 

[10-11]

The “unfairness” argument, based upon the crew recovering more wages than they

would have had their fishing agreements been valid, is addressed to the wrong

forum.  We cannot change what is clear on

the face of the statute.  Conn. Nat’l Bank v. Germain, 503 U.S.

249, 254 (1992); Griffin v Oceanic Contractors, Inc., 458

U.S. 564, 570 (1982).  The

statutory-language here is unambiguous: statutory wages are awarded any time

there is an unlawful engagement of a seaman. 

46 U.S.C. § 11107.  Operation of

Section 11107 is automatic because it renders “engagement of a seaman contrary to

the law of the United States . . . void.” 

Id.  As the Trial Division observed, “A void contract is a legal nullity,

and cannot serve as the basis for equitable estoppel.  In the event that the oral agreements between

the [c]rew and [the Kassandra Z Fishing Company] were void, partial payment on

their terms does not constitute a bar to the recovery of statutory wages under

46 U.S.C. § 11107.”  TCW Special Credits, Inc. v F/V Kassandra Z, 4 A.S.R.3d 154, 164-65

(Trial Div. 2000).  The crew members are

entitled to statutory wages for those trips, regardless of whether they had

already been paid a majority of their wages. 

The result of the Trial Division considering the old trips for which the

crew admittedly was mostly paid is a consequence of the plain language of the

statute.  Such seemingly harsh

consequences are precisely directed by the statute at forcing compliance with

Section 10601.  Thus, TCW should direct this argument to Congress.

 

[12]

TCW’s third assertion is that the crew’s claims for statutory wages on these

prior trips are barred by laches.  Laches

is an equitable doctrine that bars an action where there has been an

unreasonable delay in bringing the suit, and the other party has been

prejudiced as a result of the delay.  Czaplicki v. The Hoegh Silvercloud, 351

U.S. 525, 533 (1956); Sandvik v. Alaska Packers Ass’n,

609 F.2d 969, 971 (9th Cir.

1979).  Given a proper use, claims

involving old trips already mostly paid for might cause application of the

doctrine of lathes to mitigate the harsh consequences of the automatic

operation of Section 11107.  But TCW only

argues that if any of the crew members had raised their claims for wages under

Section 11107 earlier, the issue would have been resolved right away.  But with no record support, it would be

difficult to conclude that such claims would have been resolved with any speed,

given the fact that the owners of the Kassandra Z had repeatedly failed to pay the crew what they were owed

under the invalid oral agreements. 

Furthermore, TCW has not made an express claim of undue delay or

prejudice, nor has it made a record of any prompt payment.  The best that TCW has been able to suggest is

that if the crew members had raised their Section 11107 claims before the

foreclosure action, perhaps the vessel’s owners would have paid them.  This is an allegation, not proof, and there

is no basis upon which we could hold that the action of the crew members as to

these nine trips is barred by laches.

 

V.

 

[13-14]

TCW next challenges the “light burden” of proof to which the Trial Division

held the crew when it came to determining the amount of wages to which the crew

was entitled for its unpaid voyages and short checks under Section 11107.  The Trial Division decided that the crew need

only make what it called a “prima facie” showing that an individual seaman was

comparable to another seaman who made a higher wage at the port where the

seamen were employed.  The Court borrowed

the comparability requirement from the Court of Appeals for the Ninth Circuit’s

holding in Chloe Z, 129 F.3d at 133,

that “a wronged seaman is entitled to recover the higher of either the wages he

orally agreed to, or the higher rate of wages that could be earned by a seaman

at the port of hire who has the same rating as the complainant.”  “Rating” refers to the seaman’s “rank, job

classification, duties and ability.”  Id. at 1331.  We hold that Chloe Z properly states the rule. 

In most cases, it requires that seamen seeking statutory wages under

Section 11107 prove that the wage rate they claim is a rate derived from the

salary of a seaman with the same rank, job classification, duties and

ability.  However, these considerations

are not exclusive.  We examine the totality

of the circumstances in determining whether a seaman has demonstrated that he

or she is comparable to another seaman for purposes of Section 11107.  The Trial Division accepted a “prima facie”

showing as making out the crew’s claim of comparability.

 

[15]

To prevail in a civil action, a party must make the required showing by a

preponderance of the evidence.  Tuia Suasuai v. Salave`a, 3 A.S.R.2d 1

(Lands & Titles Div. 1986).  Here we

are called upon to determine whether the Trial Division erred when it allowed

crew members to demonstrate the applicable wage rate by merely submitting

rosters.  Those rosters listed various

crewmen with job labels such as “deckhand” or “seaman” and the corresponding

person with the same label who was earning the most money elsewhere in the

Zuanich fleet.  However, the Trial

Division made extensive findings of fact that the wage rate for ordinary

deckhands in the Zuanich fleet was determined largely by intangible factors

such as loyalty to a captain or even nepotism, rather than factors such as

rank, job classification, duties or ability. 

TCW has not proven these findings to be clearly erroneous, and

therefore, the findings must be accepted. 

The Court’s findings of fact suggest that deckhands were not generally

comparable because their wages depended not on identifiable factors like rank,

job classification, duties or ability, but rather on intangibles such as

personality or relationship to the Fish Captain.  As the Court found:

 

There

are indeed significant distinctions in the rate of wages offered deckhands, not

only from one ship to another, but even on a single trip of a single

vessel.  Certainly the reasons for these

differences were based at least in part on issues such as ability and

seniority. . . . At the same time, the facts established at trial also demonstrate

that most deckhands performed substantially the same day-to-day tasks,

including stacking nets and cork, standing watch, sorting fish, painting, and

other such duties not requiring any particular expertise or training . . . .

The method of hiring replacement deckhands is particularly illustrative of the

interchangeable nature of these workers . . . . [Fish Captain Gojko] Milisic

would simply put in a call to have someone flown out from Croatia, or would

hire any available seaman off the docks, regardless of whether the deckhand to

be replaced happened to have served in a specialized role such as spotting fish

or driving the skiff . . . . [I]n his words, the deckhands were “[j]ust . . .

laborer[s]” and needed “no license, no skill.” . . . . While we find that

experience and abilities may have played a small role in [determining wages],

as discussed above, the evidence indicates that the more critical contributing

factors were significantly less tangible. 

For example, Fish Captain Milisic testified that, among other things, he

might pay one seaman more than another because “I like the guy” or because he’s

not “a trouble maker” . . . Total experience as a seaman might be marginally

relevant to wages, but loyalty to a particu1ar captain appears to be

much more significant.

 

TCW Special Credits, Inc. v. F/V Kassandra Z,

163 3 A.S.R.3d 163, 170-71 (Trial Div. 1999).

 

Because TCW has

provided us no basis upon which to conclude that this finding dealing with

ordinary deckhands aboard the Kassandra Z is clearly erroneous, there is

no basis for requiring proof in addition to the rosters of the crew.  We affirm the Trial Division’s decision with

respect to those deckhand crew members because the Trial Division made specific

findings of fact that the Chloe

factors of rank, job classification, duties and ability played only a small

role in determining the deckhands’ wages.

 

We now turn to

the other members of the crew.  The Trial

Division constructed its overall “prima facie” case mechanism after considering

the purpose of Section 11107 and the historical position of seamen in the

fishing industry.  The Trial Division

placed a “light burden” on the crew for proving comparability based upon

concerns about the ability of seamen to search out and identify someone from their

port who has the same duties and skills as he, and the seaman’s traditional

role as a “ward . . . of admiralty.”  TCW, 3 A.S.R.3d at 171.  The Trial Division concluded that requiring

complicated methods of proof would thwart the primary purpose of Section 21107:

to provide “a quick and efficient means by which wronged seamen can get the

wages owed to them.”  Id. 

Instead, the Court decided it would be better to place the heavier

burden of rebutting prima facie comparability on the vessel’s owner, who would

have better access to the personnel in his fleet.  Id.

at 172.  In addition, the Court pointed

out that burdens of production and proof in admiralty claims are generally

relatively minimal.  Id. at 171 (citing Comeaux v, T.L. James & Co., 702

F.2d 1023, 1024 (5th Cir. 1983) (seaman’s burden of proving cause in Jones Act

cases is “featherweight”); Yelverton v.

Mobile Labs, Inc., 782 F.2d 555, 558 (5th Cir. 1986) (“A seaman’s burden of

production in establishing the value of his maintenance is feather light.”)).

 

[16]

Nonetheless, we disagree with the Trial Division that crew members in this

case, other than ordinary deckhands, are entitled to recover the wage of the

highest paid Zuanich fleet employee with the same job label such as “assistant

engineer” or “fish captain” based on crew rosters alone.  These terms are too general; the Trial

Division made no finding of fact that such generalities were reflective of the

actual computation of these crew members’ wages.  To the contrary, the Court stated “[t]here

appears to be little debate that for the most established positions aboard a

tuna boat captain, engineers, helicopter pilots, deck boss, cook,

etc.), these factors [rank, job classification, duties and ability]

will, by definition, all be [capable of comparison] from boat to boat and from

fleet to fleet.”  TCW, 3 A.S.R.3d at 169. 

Therefore, the Court’s determination that “each member of the [c]rew is

[equal] to his counterparts throughout the Zuanich fleet, within the meaning of

the Ninth Circuit’s decision in Chloe Z,”

id. at 173, is clearly erroneous in light of the crew’s burden of proving

its case by a preponderance of the evidence and the lack of facts that would

support the finding that crew members, other than ordinary deckhands, were

“interchangeable” without reference to their rank, job classification, duties

and abilities.  Instead, it would have

been helpful, for example, if these crew members had correlated themselves to

someone in the fleet with the same rank, job classification, duties and ability

(whether contained in his job description or not).  This is not too much of a burden on these

crew members in light of the monetary import of entitlement to statutory wages

under Section 11107.

 

On

cross-appeal, the crew members argue for

a literal reading of the statute and a conclusion that they are entitled

to whatever the highest wage rate is at the port at issue, regardless of what

kind of job that person holds.  Section

11101 is ambiguous as to exactly whose wages at the port in question should be

used as a substitute for the seaman engaged without fishing articles.  It says “the highest rate of wages at the

port from which the seaman was engaged or the amount agreed . . . whichever is

higher.”  The crew’s reading, however, is

patently absurd, as the phrase “whichever is higher” would have no meaning:

someone at the port (e.g., the chief executive officer of a shipping company,

etc.) will always have a wage higher than the one a crew member was promised as

a seaman.  In any event such a holding is

foreclosed by Chloe Z, 125 F.3d 1333.

 

Therefore, we

reverse the Trial Division’s ruling other than the deckhands, that the crew’s prima facie showing of comparability

proved their case by a preponderance of the evidence.

 

VI.

 

[17] Finally,

TCW argues that the Trial Division erred in awarding the crew wages for the

time they spent waiting in port for what was to be the Kassandra Z’s final voyage before

the ship’s arrest.  The Trial Division

awarded fourteen crew members wages for the period of November 21, 1996 through

July 2, 1996, the time between the end of the 215th trip and the time the Kassandra Z was arrested.  The Trial

Division awarded wages based on the doctrine of quantum meruit, which awards a plaintiff an amount equal to the

value of the benefit he has provided to protect against the unjust enrichment

of the beneficiary. Restatement (Second)

of Contracts § 370 (1981).

[18] TCW

argues that tuna fishermen are not ordinarily paid wages for in-port wait time,

and that there was little or no work performed by the crew during this period.  Whether fishermen are ordinarily paid wages

for time spent waiting in port is irrelevant to the question whether the crew

can recover in quantum meruit

for the value of the benefit they conferred upon the Kassandra Z and its owners. 

Moreover, the Trial Division found that “the [c]rew was indeed active in

maintaining the vessel and preparing it for its next fishing voyage.”  TCW,

3 A.S.R.3d at 179. The Trial Division found that the crew was instrumental in

keeping the vessel in working order, which was valuable even if the imminent

voyage never materialized because it maintained a higher price upon judicial

sale of the vessel than would have been realized if the vessel were

run-down.  This finding is not clearly

erroneous, and thus we hold that it was not error for the Trial Division to

award recovery in quantum meruit for in-port waiting time.

 

[19]

We next turn to the method the Court used in calculating the quantum meruit damages owed to the crew.  The Court multiplied 43 days (the number

spent waiting) by an “average daily catch” (as if the crew had been fishing),

which it found to he 14427 tons; and multiplied this amount (619.93 tons) by

the rate it determined to be the highest rate of wages paid to a comparable

“seaman.”  Id. at 185.  This calculation

cannot be correct because quantum meruit is an award based on the actual

value of the benefit conferred, not the hypothetical benefit that might have

accrued (catching a certain tonnage of fish) had the ship taken a last

voyage.  Furthermore, the statutory wage

provision of Section 11107 (highest rate of wages at the port of engagement)

cannot come into play in the calculation of an award for benefits conferred

during the in-port waiting time.  Section

10601 (whose violation results in an award of statutory wages under Section

11107) provides that a written fishing agreement shall be made “before

proceeding on a voyage.”  46 U.S.C. §

10601.  The Kassandra Z did not “proceed on a voyage” after

Trip 26 (the last before the ship was arrested), so Section 10601 could not

have been violated, nor Section 11107 implicated.  We therefore reverse the Trial Division’s

decision regarding the method of calculating the quantum meruit award, with direction to find

facts and make a calculation of the benefit conferred upon the Kassandra Z by the crew’s efforts in

those 43 days.

 

[20]

TCW argues that even if quantum meruit recovery is warranted, it cannot

be awarded in rem against the sale

proceeds of the ship.  However, American

Samoa law allows in rem recovery against a vessel of a quantum meruit

award.  Zuguin v. M/V Captain M.J. Souza, 23 A.S.R.2d 7, 10 (Trial Div.

1992).  Zuguin permitted a helicopter pilot engaged to prepare a ship for a

voyage to recover in quantum meruit

in an in rem proceeding against the vessel where the mechanic had quit

prior to the planned voyage.  Id. at 10-11.  We therefore hold that the Trial Division may

allow in rem recovery of the quantum

meruit award.

 

VII.

 

In summary, we

affirm the Trial Division’s award of wages under Section 11107 for ordinary

deckhands, the grant of priority to these wages over TCW’s preferred ship

mortgage, and the allowance in rem award of quantum meruit

damages for services performed while the Kassandra Z was in harbor. 

 

We reverse the

Trial Division’s decision allowing the crew, other than the ordinary deckhands,

to prove comparability by prima facie

showing only, and its method of calculating the quantum meruit recovery owed to the crew for

in-port waiting time. 

 

We remand for

the Court to conduct such further hearings as the Trial Division wishes in

keeping with our decision.  No costs.

 

It

is so ordered.                        

 

**********

 



*

The Honorable J. Clifford Wallace, Senior Circuit Judge, United States Court of

Appeals for the Ninth Circuit, sitting by designation of the Secretary of the

Interior.

**

The Honorable Susan Oki Mollway, District Judge, United States District Court

for the District of Hawaii, sitting by designation of the Secretary of the

Interior.